SANJIB BANERJEE, J. - (1.) THE petitioner presses for the company being wound up for its refusal to pay the petitioner's dues. The petitioner claims that a principal sum of Rs. 1,23,94,435/ - is due to it on account of the price of goods sold and delivered.
(2.) IN its statutory notice the petitioner claimed as follows before arriving at the principal claim of Rs. 1.23,94,435/ - after giving credit to the sums paid by the company: Our client deals in various chemicals both of Indian and imported origin. During the usual course of business you placed various orders on our clients for supply of diverse chemicals for your tannery factory. From time -to -time our clients supplied you diverse quantities of chemicals. All the chemicals were delivered to you vide our clients different invoices and the same were duly accepted by you without raising any objection whatsoever. Thereafter, our clients raised and submitted their bills, which were also accepted by you without raising any objection whatsoever. From time -to -time you made various on account payments which were adjusted against the supply made by our clients. The transaction was of running, mutual current account. During the course of dealing on September 15, 2003, you had admitted and confirmed a sum of Rs. 1,38,93,948 was due and payable to our clients. The innocuous words appearing in the first of those two paragraphs would indicate that it was routine transaction of orders being placed and supplies accompanied by bills there for arriving at the company's gates. But the company had quite an elaborate defence in its prompt response of February 8, 2006. In the ten pages of the company's reply, there is not only the making of a plaint that is apparent, but it is obvious that the plaint was the basis of the reply. The company claimed that the transaction was not the run of the mill and mundane exercise of goods being delivered against the orders placed. The company asserted in its reply that the parties had entered into 13 high seas sale agreements in respect of leather chemicals. Paragraphs 7 and 8 of the company's response detailed the terms of what appears to be an oral agreement that included a term that the goods were to be stored at the petitioner's godown and were to be taken delivery of by the company after inspection. It claimed that the goods remained at the petitioner's godown without the petitioner offering inspection, though the bills in respect thereof were raised on the company. The company claimed that in view of the long -standing relations between the parties it had no room to suspect any foul play. Thereafter, the six paragraphs of the company's response claimed as follows: 12. In early April, 2003, your client informed my client that it would offer inspection of the said goods and a portion thereof within a few days and shall complete delivery of the same immediately thereafter. On that occasion, your client requested my client to issue a few post -dated cheques and to sign the balance confirmation as on September 15, 2003, representing that the same would be required by your client for its audit purposes. Believing the representations so made by your client to be correct and as there was no reason for my client to apprehend any mala fide intention on the part of your client, my client issued several postdated cheques in favour of your client and also signed a balance confirmation as on September 15, 2003. My client issued the said postdated cheques and caused the said balance confirmation to be signed in good faith and believing such representations so made by your client to be true and correct. Had my client, had any idea that your client had no intention of delivering the said goods, they would not have issued the said post -dated cheques and also would not have signed the said balance confirmation, which include price of the said goods which were neither sold nor delivered by your client to my client. 13. Thereafter, in or about July, 2003, my client was shocked and surprised to receive a summons under Section 108 of the Customs Act, 1962, calling upon them to appear before the Directorate of Revenue Intelligence, Kolkata Zonal Unit, Kolkata, for giving evidence and for producing documents pertaining to the transactions under the said Bills of Entry, under which the said goods as aforesaid were cleared. 14. In December, 2003, my client further received a show -cause notice dated December 26, 2003, from the Directorate of Revenue Intelligence, Kolkata Zonal Unit, Kolkata, calling upon them to show cause as to why proceedings should not be initiated against them under Section 124 of the Customs Act, 1962, for diversion of the said goods imported and cleared under the aforesaid Bills of Entry in violation of the Advance Licence/ Duty Exemption Entitlement Certificate Scheme and for evasion of customs duty. 15. From the said show -cause notice dated December 26, 2003, and the evidence of one of the directors of your client, i.e. Naresh Kumar Juneja, tendered before the Directorate of Revenue Intelligence Authorities in the proceedings under Section 108 of the Customs Act, my client for the first time came to know that your client had sold a major portion of the said goods covered under the said thirteen high sea sale agreements from its godown to various other parties. 16. Prior to receiving the said show -cause notice, my client had no knowledge of such illegal acts of diversion by your client in respect of the said goods. 17. Because of such diversion and/or disposal of the said goods by your client as aforesaid, my client had to pay a sum of Rs. 52,50,030/ - to the customs authorities towards customs duty, which was otherwise payable on such imported goods and also a sum of Rs. 7,05,444/ - on account of interest on the said sum of Rs. 52,50,030/ -. My client was also required to pay further sum of Rs. 95,911/ - on account of penalty imposed upon them by the issuing authority of the said advance licence namely the Zonal Joint Director of Foreign Trade, Kolkata. 18. But for such diversion and/or disposal of the said goods by your client, my client would not have become liable to pay the said aggregate sum of Rs. 60,51,385/ - and as such your client is liable to compensate my client for the same. In the alternative, the said aggregate sum of Rs. 60,51,385/ - as was paid by my client on account of your client for the said goods which was appropriated and utilised by your client and as such your client is liable to reimburse my client for the said sum of Rs. 60,51,385/ -.
(3.) THE company claimed from the petitioner such sum that it had paid to the authorities, including on account of interest and penalty. In addition, it claimed a sum of Rs. 1 crore on account of damages. The company referred to letters of June 3, 2004 and July 25, 2004, by which the company had asked the petitioner to sit for verification of accounts. Shortly, after shooting off its reply, the company instituted a suit by the second week of February, 2006, in support of the claim found in its response to the statutory notice.;